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Protection of Human Rights Act

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CONSOLIDATED TO 30 JUNE 2012

LAWS OF SEYCHELLES

Act 3 of 2009

S.I. 103 of 2009

PROTECTION OF HUMAN RIGHTS ACT

[12th January, 2009]

ARRANGEMENT OF SECTIONS

1. Short title

2. Interpretation

3. Establishment and appointment of the Commission

4. Resignation and removal of members

5. Terms and conditions of service of members

6. Functions of the Commission

7. Staff of the Commission

8. Members and staff to be public officers

9. Powers and duties of the Commission

10. Investigation

11. Protection of witnesses

12. Persons likely to be prejudicially affected

13. Protection of action taken in good faith

14. Reports of the Commission

15. Finance

16. Offences and penalties

17. Jurisdiction

18. Regulations

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1. This Act may be cited as the Protection of Human Rights Act.

2. In this Act, unless the context otherwise requires —

“Commission” means the National Human Rights Commission established under section 3;

“Constitution” means the Constitution of the Republic of Seychelles;

“human rights” means the rights and freedoms referred to in Chapter III of the Constitution of the Republic of Seychelles;

“member” means a member of the Commission and includes the Chairperson;

“public authority” means —

(a) a Ministry or Government department;

(b) a division or agency of the Government or a statutory corporation or a limited liability company which is directly or ultimately under the control of Government or any other body which is carrying out a governmental function or service; or

(c) a person or body specified as a public authority by an Act.

3.(1) There is established, for the purposes of this Act, a National Human Rights Commission, which shall be a body corporate and which shall consist of a Chairperson and two other members.

(2) The Commission shall not in the discharge of its functions, be subject to the control of any person or authority.

(3) The Chairperson shall be the person appointed as Ombudsman under article 143 (1) of the Constitution.

(4) The other members of the Commission shall be —

(a) a person who has been a Judge or is a barrister of more than five years standing; and

(5) The Chairperson and other members shall be appointed by the President in consultation with the Chief Justice and the Speaker of the National Assembly and such appointments shall be published in the Gazette.

(6) A member shall hold office for a term of 4 years, and is eligible for reappointment.

(7) Where a vacancy occurs in the office of the Chairperson by reason of death, resignation or such other cause as is specified in section 4 (2) and (3), the President may authorise another member to act as Chairperson until the vacancy is filled.

(8) Where the Chairperson is absent or on leave, the President may authorise another member to discharge the functions of the Chairperson until the date on which the Chairperson resumes office.

(9) A member shall not enter upon the duties of his office unless he has taken and subscribed before the President the Oath of Allegiance and the Judicial Oath.

4.(1) A member may by a notice in writing addressed to the President, resign from office.

(2) Subject to the provisions of subsection (3), a member shall be removed from office by order of the President on the ground of proved misbehaviour or incapacity of body or mind, after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Chief Justice, reported that the member, ought on any such ground to be removed.

(3) Notwithstanding anything in subsection (2), the President may by order, remove from office any member, if the member –

(a) is adjudged an insolvent;

(b) is unfit to continue in office by reason of infirmity of body or mind; or

(c) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.

5.(1) The salary or allowances payable to, and other terms and conditions of service of the members shall be as may be prescribed by the President.

(2) The salaries or allowances and other terms of conditions of service of a member, shall not be varied to the disadvantage of the member after appointment.

6.(1) Subject to subsection (2), the Commission may, without prejudice to the jurisdiction of the courts or the powers conferred on the Attorney-General or the President, or any public authority —

(a) inquire into any written complaint from any person alleging that any of his human rights has been, is being or is likely to be violated by an act or omission of any other person;

(b) visit any police station, prison or other place of detention under the control of the State to study the living conditions of the inmates and the treatment afforded to them;

(c) review the safeguards provided by any enactment for the protection of human rights;

(d) recommend action to alleviate the factors or difficulties that inhibit the enjoyment of human rights;

(e) exercise such other functions as it may consider to be conducive to the promotion and protection of human rights.

(2) The Commission shall not —

(a) inquire into any matter after the expiry of 2 years from the date on which the act or omission which is the subject of a complaint is alleged to have occurred;

(b) exercise its functions and powers in respect of any action —

(i) concerning a matter which the President certifies, may affect the relations or dealings between the Government of Seychelles and any other Government or international organisation, the security of the Republic or the investigation of crime;

(ii) concerning the performance of a judicial function of a Justice of Appeal, Judge or any other person performing a judicial function;

(iii) which is or has been the subject of an application under article 46 of the Constitution;

(iv) which has been investigated and dealt with by the Ombudsman under Schedule 5 of the Constitution;

(v) unless the person aggrieved is resident in Seychelles or the action was taken in respect of the person aggrieved while the person was present in Seychelles or in respect of rights or obligations that arose or accrued in Seychelles.

(3) The Commission shall, in the first place, attempt to resolve any complaint, or any matter which is the subject of an inquiry, by a conciliatory procedure.

(4) Where the Commission has not been able to resolve a matter through conciliation, it shall inquire into the complaint and on completion of its inquiry —

(a) where the inquiry discloses a violation of a human right or negligence in the prevention of such violation, refer the matter to —

(i) the Attorney-General where it appears that an offence may have been committed;

(ii) the head of the appropriate public authority where it appears that disciplinary procedures may suffice; or

(b) recommend to the President the grant of such relief to the complainant or to such other person as the Commission may think fit; and

(c) inform the complainant of the outcome of its inquiry.

(5) The Commission shall, on the completion of its inquiry, send a written communication setting out its conclusion and any recommendation to the President who shall, as soon as practicable, report to the Commission the action taken or proposed to be taken.

(6) Where any person makes a written complaint against an act or omission of a member of a Disciplinary Force or a Disciplinary Force in relation to him, the Secretary to the Commission shall request the Head of the Disciplinary Force concerned to undertake an investigation into the complaint, and to inform the Commission of any criminal or disciplinary proceedings taken or to be taken as a result of the complaint.

(7) The Commission may require the Head of the Disciplinary Force concerned to provide it with such further information as it thinks fit in relation to any matter referred to in subsection (6).

(8) Where, in relation to any matter referred to in subsection (6), the Commission is informed that no criminal or disciplinary proceedings are to be taken, it may inquire into the matter and exercise in relation thereto any of the powers conferred upon it under this Act.

7.(1) The Commission shall appoint a Secretary to the Commission who shall exercise such powers and discharge such administrative functions as the Commission may delegate to him.

(2) The Commission may employ such other staff as it considers necessary for the discharge of its functions, on terms and conditions applicable for the time being in the public service.

8. Every member of the Commission and every officer appointed or authorised by the Commission to exercise functions under this Act shall be deemed to be a public officer.

9.(1) The Commission may, for the purposes of this Act —

(a) summon witnesses and examine them on oath;

(b) receive evidence on affidavit;

(c) issue a commission for the examination of witnesses or documents;

(d) call for the production of any document or other material;

(e) obtain such information, file or other record, as may be necessary for the exercise of its functions;

(f) undertake any other matter which may be prescribed.

(2) Any officer of the Commission specially authorised in that behalf by the Chairperson may, on a warrant issued by a Judge in Chambers, enter any building or place where the Commission has reason to believe that any document or other material relating to the subject-matter of an inquiry may be found and may seize any such document or other material or take extracts or copies therefrom.

(3) Every order, authorisation, or decision of the Commission shall be authenticated by the Secretary to the Commission or any other officer of the Commission duly authorised by the Chairperson in that behalf.

(4) The Commission shall regulate its meetings and

proceedings in such manner as it may think fit, and two members shall constitute a quorum.

10.(1) The Commission may, for the purposes of conducting any investigation pertaining to an inquiry, utilise the services of any police officer or other public officer designated for the purpose by the Commissioner of Police or the President, as the case may be.

(2) The officer whose services are utilised under subsection (1) shall investigate any matter pertaining to an inquiry held by the Commission and submit a report thereon to the Commission within such time as may be specified by the Commission.

11. Notwithstanding any enactment, but subject to section 16, no statement made by any person in the course of giving evidence before the Commission or to any person whose services are utilised under section 10 (1) shall, where it is —

(a) relevant to the subject-matter of the inquiry; or

(b) made in reply to a question which he is required by the Commission to answer, subject the maker of the statement to, or be used against him in, any civil or criminal proceedings, unless he has given false evidence in the statement.

12.(1) Subject to subsection (2), where at any stage of an inquiry, the Commission —

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of the opinion that the reputation of any such person is likely to be prejudicially affected by the inquiry,

it shall give to that person a reasonable opportunity of being heard in the inquiry and of producing such relevant evidence as that person deems appropriate.

(2) Subsection (1) shall not apply where only the credibility of a witness is being impeached.

13. No suit or other legal proceeding shall lie against the Commission or any member or any person acting under the direction of the Commission in respect of anything which is done or purported to be done in good faith in pursuance of this Act or in respect of the publication by or under the authority of the Commission of any report, proceedings or other matter under this Act.

14.(1) The Commission shall, not later than 31 March in each year, submit a report on its activities during the preceding year to the President and may, at any other time, submit a special report on any matter which, in its opinion, is of such urgency or importance that it should not be deferred until submission of the annual report.

(2) The President shall cause every report of the Commission to be laid before the National Assembly within one month of its submission.

15.(1) The Commission shall, not less than 3 months before the commencement of every financial year, submit to the Minister of Finance an estimate of its expenditure.

(2) The accounts of the Commission shall be audited by the Auditor-General.

(3) The accounts of the Commission, as certified by the Auditor-General, together with the audit report thereon shall be forwarded annually to the President by the Commission and the President shall cause the audit report to be laid, as soon as may be after it is received, before the National Assembly.

16. Any person who —

(a) fails to attend the Commission after having been required to do so;

(b) refuses to take an oath before the Commission or to answer fully and satisfactorily to the best of his knowledge and belief any question lawfully put to him in any proceedings before the Commission;

(c) refuses to produce any document or other material when required to do so by the Commission;

(d) knowingly gives false evidence, or evidence which he knows to be misleading, before the Commission;

(e) at any sitting of the Commission —

(i) insults a member;

(ii) interrupts the proceedings;

(f) commits a contempt of the Commission; or

(g) knowingly makes a false or malicious complaint to the Commission,

commits an offence and on conviction, is liable to a fine not exceeding R50,000 and to imprisonment for a term not exceeding one year.

17. Notwithstanding any other Act, the Supreme Court shall have jurisdiction to try any offence against this Act and may impose any penalty provided by this Act.

18.(1) The President may make such regulations as he thinks fit for the purposes of this Act.

(2) Any regulations made under subsection (1) may provide that any person who contravenes them commits an offence, and shall on conviction be liable to a fine not exceeding R50,000 and to imprisonment for a term not exceeding one year.